Judge quashes tomatillo polytunnels decision

A council has lost a High Court fight over polytunnels built for tomatillos

A council wrongly approved a plan to cultivate a Mexican fruit on farmland near an English village, a judge has decided following a High Court fight.

Deputy High Court Judge Tim Smith has ruled that East Hertfordshire District Council unlawfully gave the go-ahead to the erection of three polytunnels near Little Berkhamsted, Hertfordshire.

Vladyslav Petryk wanted to use the polytunnels to grow tomatillos on land at Bucksbury Farm.

But neighbour Andrew Rickards took court action against the council after raising concerns.

The council approved the erection of polytunnels on farmland near Little Berkhamsted

Judge Smith has outlined the detail of the dispute in a written ruling following a hearing at the Royal Courts of Justice in London in June.

He was told that the polytunnels stood side by side and were "large" – 32m (about 100ft) long, 8m (about 25ft) wide and nearly 5m (about 15ft) high.

Mr Rickards made a number of challenges to the council's decision to approve the polytunnels scheme.

Lawyers representing the council argued that approval was lawfully granted, but the judge upheld two of Mr Rickards' complaints.

He concluded that the council had not taken account of the impact the polytunnels would have on a nearby ancient woodland, and their impact on a nearby listed building owned by Mr Rickards.

'Simply unaware'

Judge Smith said evidence showed that a council officer was "simply unaware" that "there was a listed building and an ancient woodland to be considered".

He said: "In my judgment, the impact of the works on both the listed building and the ancient woodland were material considerations needing to be addressed as part of the prior approval decision.

"The evidence strongly suggests that this was not done."

The hearing was held at the Royal Courts of Justice

• Judge Smith said the polytunnels were in the Metropolitan Green Belt and near Bayford Wood – an area designated as ancient woodland by Natural England.

• He said the land had been used for agricultural purposes, including grazing and hay production, for beehives, and for the cultivation of "specialist wood-grown mushrooms".

• The judge said Mr Petryk had "identified an opportunity to diversify".

• "He wishes to cultivate tomatillos, a fruit which originates from Mexico and central America and which is used predominantly in Mexican cooking," said the judge.

• "Cultivation of the crop in this country requires a protected-cropping regime to be able to regulate the environment in which they grow.

• "To this end (he) sought consent for the erection of three polytunnels, and related hard infrastructure, in which the crop could be grown with some controls over the microclimate."